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July 30, 2007

Debating the death penalty as bargaining chip

I have previously noted (such as in this post) that I think the biggest impact of having (or not having) the death penalty in a jurisdiction may be its possible impact charging and plea bargaining practices. Especially because this aspect of capital punishment has received relatively little attention, I am pleased to see this new AP article, entitled "Strategy changing on death penalty," discussing the pros and cons of the use of the death penalty as a bargaining chip by various Washington State prosecutors' offices. (Hat tip: ODPI) Here is how it begins:

In an interview early this year, Pierce County Prosecutor Gerry Horne called Washington state’s death penalty law a farce, and he suggested it is so ineffective that the Legislature should consider getting rid of it. When time came to find 12-year-old Zina Linnik, though, he was glad to have it.

Four days after the Tacoma girl disappeared, Horne — believing time was running out to find her alive — promised not to seek the death penalty against the suspect, Terapon Dang Adhahn, if he told detectives where she was. Adhahn agreed, leading them to her body in East Pierce County. Without the death penalty, “We would have no leverage in some instances,” Horne said last week. “It’s nice to have that tool in your kit.”

Horne’s attitude reflects the evolving considerations prosecutors in Washington weigh when dealing with potential capital cases. For generations, prosecutors refused to use the death penalty as a “bargaining chip” in obtaining guilty pleas. Agreements to spare serial killers Robert Yates in Spokane County and Gary Ridgway in King County in exchange for confessions or help finding remains opened the door to some extent.

I would be very eager to hear — both from death penalty proponents and death penalty opponents — what they think about using the death penalty as a bargaining chip. Of course, all sorts of nin-capital punishments are used as bargaining chips in the criminal justice system, but there may be reasons that both proponents and opponents might think in this arena death should be different.

Comments

I don't see how a prosecutor could ever say he has no leverage in determining what charges to bring. Did this prosecutor try "I promise not to seek life in prison" before he tried "I promise not to seek the death penalty"? If not, he's just lying.

It's probably not the most savory of things, i.e., using death as a bargaining chip, but when dealing with a murderer, who cares? If this sick bastard had never laid his mitts on that poor girl, he wouldn't have to worry about that, now would he?

Posted by: federalist | Jul 30, 2007 8:05:41 PM

Federalist, you presume guilt. What about when dealing with an innocent person? If the cops stormed down your door five minutes from down, 50 of them with automatic weapons pointed at your face, tazered you and dragged you down to the police station and charged you with capital murder, and the DA sought the death penalty, you'd feel a little different if they said they had plenty of evidence--10 people will testify that they saw you do it in broad daylight and they have your fingerprints at the scene. What would you do if they offered you 10 years in prison versus going to trial and risking death? Death is too coercive.

Of course, all the people like you on the internet would be saying "fry the murderer."

Capital defendants have attorneys, often two of them. Your scenario simply does not happen today.

Posted by: David | Jul 31, 2007 10:09:57 AM

Damnit, federalist..."people like you" who think we should not only actually use the death penalty but also perhaps use it as leverage against some murderers instead of offering less than life imprisonment to twist their arm...tsk, tsk, how do you sleep at night?

Professor Berman, I believe I addressed the issue of using the threat of capital punishment in terms of obtaining plea agreements in my white paper this past semester. I see no problem of extending the use of capital punishment as a coercive tool to a search for additional victims or remains or whatever is appropriate in those circumstances. This is obviously a judgment call and is not appropriate in all or even most circumstances. Silly me, though, I'm one of the few around here who believe that most prosecutors actually do their jobs in good faith and are not out to screw innocent people. Just as a false rape accuser makes things that much more difficult for legitimate rape victims to come forward, the poor judgment or wrongdoing of individual prosecutors makes it harder for the rest of them. However, instead of being outraged that a prosecutor would "lie" about not having any leverage when he could reward horrible behavior with less than life in prison, I'll save my outrage for the murderers who deserve the most severe punishment and for the prosecutors who abuse their position and thus screw things up for those who truly are seeking justice.

Posted by: Ben D | Jul 31, 2007 11:01:52 AM

I am against the death penalty, and often enjoy debating the issue with pro-DP friends and family. The ability to use the DP as a negotiation tool however, is the hardest justification to refute. This tool has saved WA $millions, saved unnecessary hardship for the families, and prevented lengthy and expensive trials and appeals. The only retort is that it distorts the state Supreme Court's mandatory proportionality review. As WA S.C. recently recognized, it is hard to justify the DP for a defendant who only kills one or two people, when serial killers such as Ridgeway and Yates do not get the DP simply because they can offer up more bodies.

Posted by: TStaab | Jul 31, 2007 11:08:35 AM

Ben, were you being sarcastic?

Posted by: federalist | Jul 31, 2007 11:27:57 AM

Yeah...I figured the second paragraph would make that clear. I'll remember my [/sarcam] tag next time.

Posted by: Ben D | Jul 31, 2007 11:31:11 AM

I dont get a ton of love around here, so I had to check.

Posted by: federalist | Jul 31, 2007 11:50:58 AM

"The only retort is that it distorts the state Supreme Court's mandatory proportionality review. "

That's actually pretty easily solved if the legislature has the political will to do it. Just get rid of proportionality review. It's not constitutionally required. See Pulley v. Harris, 465 U.S. 37 (1984).

It is the nature of our judicial process that some defendants will get off with less than they deserve and some will get off altogether. Our burden of proof is expressly premised on the view that some guilty people getting off is a risk we must tolerate. Absent systemic discrimination on a suspect classification such as race, the fact that another criminal got off easy is no reason to forgo justice in the case before the court.

David, yes it does happen, just not very often. Often enough to maintain the presumption of innocense. Though. Wrongful accusations of crimes happen every day. Oftentimes, the court-appointed lawyers in such situations are there only to get the defendant to plead out. Facing death is simply too coercive, especially when they make an offer significantly less than life in prison if the defendant pleads guilty.

For example, the only time I've ever advised a client to take a plea deal still bothers me. My client was on felony probation for DWI and was charged with 2nd degree aggravated assault with a deadly weapon, looking at 20 years. However, it was a clear case of self-defense and frabrication on the part of the state's witness (who just got out of jail for assaulting my client a few hours earlier), the state knew it. Instead of dismissing the case, the state offered my guy 2 years deferred adjudication probation. My client would finish this deferred before he finished the 6 years of probation remaining on his DWI conviction. Because a gun was involved, if he was convicted it would be a long time before he'd be eligible for parole under texas law, and he'd likely get the maximum sentence because he was on probation when this allegedly occurred.

SO, I advised him to plead guilty and take the 2 years deferred adjudication probation, which would run concurrent with his 6 years probation for the felony DWI... if he behaves for 2 years he will be discharged and the 2nd degree felony won't be on his record.

But he was innocent. Everyone knew it. It was a very triable case, but at the end of the day, it wasn't worth risking 20 years in prison when offered 2 years deferred.

So imagine what it's like when the state is trying to execute you, but willing to bargain. We'll execute you if convicted, but if you plead guilty, we'll ask for 15 years. Sure, most cases they would be asking for life or the functional equivalent to life based on the defendant's age. But not all cases.

For maybe the most blatant and egregious example of the death penalty being used as a bargaining chip, check out http://www.kerrymaxcook.com. Go to the "videos" section and watch the "Frontline" video (2nd one down). Death or probation (after 3 reversals and new trials and blatant systematic police and prosecutorial misconduct). When the prosecutors were told they could not use purjured testimony, they offered him time served in exchange for a nolo condendere Alford plea.

With respect to proportionality review, wouldn't it be simpler to modify the state statutes to reflect the Constitutional proportionality review?

"Eighth Amendment proportionality, as defined by the Supreme Court, refers 'to an abstract evaluation of the appropriateness of a sentence for a particular crime.' Pulley v. Harris (1984), 465 U.S. 37, 42-43 (holding that the petitioner was not constitutionally entitled to a proportionality review that would 'compare Harris’s sentence with the sentences imposed in similar capital cases')." Getsy v. Mitchell, 2007 WL 2118956.

Under that standard, the sentences of Yates and Ridgeway would have no effect on a proportionality review.

On another note - if you're doing a proportionality review under the current statutory scheme -- is it even appropriate to review sentences that resulted from pleas?

Posted by: JustClerk | Aug 1, 2007 9:08:40 AM

Justaclerk, Replying to your last sentence, I think that the answer is "yes." The reason is this: 1) not all pleas (state and federal) are made with a binding sentence agreement in place (and some are made with reservations of a right to appeal); and 2) pleas are made "in the shadow" of sentences actually adjudicated. So, even if you can't point to specific decision-making by a judge (or a jury in some states), you can understand that the plea was made "as if" such decision-making, given the state of the law at the time was a certainty.

I don't precisely know how this stacks up in general. The nature of criminal practice varies widely between jurisdictions, and a lot of sentencing procedure is very court or judge-specific (and rarely reviewed on appeal).

S.cotus, I agree with your general analysis, but I question its validity in capital cases. Although I haven't seen stats on it, logic would dictate that a vast majority of pleas either remove the death penalty from the table or require that the State recommend LWOP. It seems these pleas would tip the proportionality review across the board in favor of LWOP and thus using them would undermine the underlying scheme utilized for imposing the death penalty.

Posted by: JustClerk | Aug 2, 2007 12:59:19 PM

Just a Clerk, Exactly. If a prosecutor is willing to agree to a plea, and is willing to give up the state’s “right” to kill someone, then that says that the prosecutors agree, as a policy matter that a set of crimes don’t require a trial and the death penalty. In essence, any prosecutor that agrees not to seek the DP, is, indeed changing the dataset for proportionality analysis. If prosecutors really wanted to kill more people, they would need to take things to trial. Sure, some people might be acquitted, but that is a risk that society takes, and our solution to that problem would be to amend the constitution.

"It is the nature of our judicial process that some defendants will get off with less than they deserve and some will get off altogether."

Notice Kent never said: "Some defendants will get more than they deserve." Which is why, though Kent is a very smart guy, few thinking people take him seriously. In Kent's world, no defendant can get "more than he deserves."

Posted by: That's Kent For Ya | Aug 2, 2007 4:48:36 PM

S.cotus - I think your analysis is overgeneralized. There are a litany of reasons that prosecutors may take death off the table that have nothing to do with whether the crime is deserving of the death penalty. Just as in this story, those charged with the DP may have information that can ease suffering or bring closure to victim's families. Being willing to trade the DP for this info doesn't support your conclusion that the prosecutor has decided that proportionally the crime doesn't warrant that sanction.

Posted by: JustClerk | Aug 3, 2007 11:04:05 AM

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